totally disabled from doing any work, and most of them were of the opinion that his disability was permanent; two doctors expressed a mere hope, not shown to have been realized, that treatment might rehabilitate him to the extent that he might be able to do light work.
It is to be observed that plaintiff was in Allegheny General Hospital under the service of Dr. Steele who reported plaintiff totally and permanently disabled. No doctor from the hospital was called to deny his conclusion. Likewise, no doctor was called from the St. John's Hospital where plaintiff was a patient in 1956 to refute the medical evidence or express an opinion that plaintiff was able to engage in any substantial gainful activity. The hospital records were not procured.
The Falk Clinic report was made by the Librarian. Plaintiff was studied at the Clinic from January to March, 1955. No doctor from the clinic was called to contradict the medical evidence in the record or to express contrary opinions. On the other hand Dr. Tannehill and Dr. Sarandria who treated plaintiff during this same period were emphatically of the opinion that his total disability continued to exist.
In our opinion this secondhand hearsay evidence submitted by the Librarian of Falk Clinic is too remote and not at all probative of the ultimate facts in issue and hence is not substantial evidence to support the conclusions and decision of the Council.
Mere uncorroborated hearsay or rumor does not constitute substantial evidence. Consolidated Edison Co. of New York v. National Labor Relations Board, 1938, 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126; National Labor Relations Board v. Amalgamated Meat Cutters, 9 Cir., 1953, 202 F.2d 671, 673.
The evidence on which the Council and Referee purported to rely is not only of 'small probative value' but 'in relation to the type of evidence reasonably anticipated in the circumstances of the case, that very slight proof must be characterized as unsubstantial.'
At most it was 'handpicked fragments of evidence' merely enough to raise a 'suspicion'.
In our opinion there was no substantial evidence to contradict the medical opinions that plaintiff was totally and permanently disabled; neither was there any affirmative evidence that he had or could have, in view of his limited education and physical condition, engaged in any substantial gainful employment.
Expert opinions on such issues are admissible evidence to be considered by the fact finder, but when they are not repudiated in any respect by substantial evidence to the contrary, an adverse decision on these ultimate facts should be set aside as based on 'suspicion' and 'speculation'.
Where, as here, the evidence disclosed that plaintiff, though ambulatory since May, 1946, could not and did not engage in any substantial gainful activity, that his condition from the beginning, and at the time of hearing, could be expected to be of long-continued and indefinite duration, and there was no substantial evidence to the contrary, a finding against the plaintiff could hardly be sustained under § 1009(e)(B)(5), (6) of the Administrative Procedure Act, Title 5 U.S.C.A.
An appropriate order will be entered denying defendant's motion for summary judgment and reversing the decision of the Secretary.